Right to work checks

No matter the industry, employers are legally obliged to undertake immigration checks for each prospective employee to demonstrate that they’ve not employed someone illegally.

Stemming from the Immigration, Asylum and Nationality Act 2006 – under which evidence of a right to work check creates a statutory defence, called a ‘statutory excuse’, for the employer – the obligation to conduct right to work checks is supported by regularly-updated Home Office guidance. This guidance, entitled Employer’s guide to right to work checks, was updated on the 28 February 2023 and can be found on the government’s website.

These immigration checks have always been of significance for employers, as there are some hefty penalties attached: a penalty notice of £20,000 per employee. In a recent Home Office announcement, however, the maximum illegal working civil penalty has been increased from £20,000 to £60,000, while the fine for an employer’s first breach has been raised from £15,000 to £45,000 – both due to changes outlined in 2022. These changes will come into effect on Monday 1 January 2024.

In addition to the penalty notice, there’s a separate criminal offence listed under the Immigration, Asylum and Nationality Act 2006 with additional penalties: hiring a person while knowing – or with reasonable cause to know – that they are disqualified from working in the UK can lead to up to five years imprisonment and/or a civil fine.

Though an employer’s recruitment routine should already incorporate right to work checks, the means to undertake them were updated in 2022 and may require a change of action plan. There are now three ways of conducting right to work checks:

Manual – Manual checks of original documents need to be done in person. A manual check will require one document from each of the Home Office’s lists of acceptable documents: passports, immigration status documents, birth or adoption certificates, and certificates of naturalisation.

If checking an applicant’s right to work in the UK manually, employers need to ensure: all documents are genuine; the information on each document is identical; and the person presenting them is the prospective or existing employee. It is therefore critical that, for example, all photographic evidence matches the person’s appearance and all dates – including date of birth – are consistent.

The government offers an online service to help employers identify which documents they need to see. Simply click the link, ‘Check if a document allows someone to work in the UK’.

Online – Online checks must be used for employees with biometric residence permits, biometric residence cards, frontier worker permits, or e-Visas via the Home Office.

Employers will need to see the original documents in the presence of the candidate (or employee) and obtain a share code from them. The employer must retain evidence of the results of this check.

This service can be found on the government’s website via a link titled ‘Check a job applicant’s right to work: use their share code’.

Digital Identity Service Provider (called IDSP – Available since April 6, 2022, alongside a current list of certified IDSPs on the government’s website, employers can pay a government-approved IDSP to undertake the checks on their behalf.

Although using an IDSP will give an employer a continuous statutory excuse, it’s still the employer’s responsibility to obtain evidence of the IDSP’s Digital Identity Document Validation Technology (IDVT) check. An employer will only have a statutory excuse if they reasonably believe that the IDSP has carried out the check in accordance with the most current Home Office guidance.

1 GDPR: As an IDSP will be processing data for an employer, it’s imperative that the contract between the employer and the IDSP provider complies appropriately with both GDPR and the ICO guidance – particularly regarding the processing of sensitive data.

2 When to conduct right to work checks: It may seem obvious, but to engage the statutory defence, checks should be completed before the candidate starts working for the employer. While a late check doesn’t automatically trigger a fine, if it later turns out that the employee is working illegally, then the employer will have no statutory defence.

3 Keep records: And, more importantly, ensure these records are easily accessible to the employer. It’s prudent to refresh policies on evidence storage regularly; if an employer chooses to store the records electronically, they need to be satisfied the information cannot be corrupted, accidentally deleted, or otherwise lost.

4 Finger on the pulse: Keeping up to date with changes to government guidance – particularly in light of Brexit and the recently announced fine increases – is key. Recent changes, for example, include the removal of employers’ ability to undertake right to work checks by video call (introduced in 2020) and, since 2022, an ongoing government push towards e-Visas.

Employers should review their processes to ensure that they are up to date and robust enough for the statutory excuse to be proven.

In light of the changes to penalty notices in 2024, employers should review their processes to ensure that they are up to date and robust enough for the statutory excuse to be proven. Staff training may need to be refreshed and record keeping, such as the implementation of review dates, tightened.

All Alliance members can contact the team at Law-Call for legal advice. You can find their contact details in the members’ area of our website at portal.eyalliance.org.uk.